Kentucky's Marriage Ban Ruled Unconstitutional

A federal judge declared that Kentucky's refusal to recognize legal out-of-state same-sex marriages is unconstitutional, but stopped short of establishing marriage equality in the state.

BY Sunnivie Brydum

February 12 2014 2:42 PM ET

Michael De Leon (left) and Greg Bourke, one of the four same-sex couples who filed suit challenging Kentucky's ban on marriage equality.

U.S. District Judge John G. Heyburn declared Wednesday that Kentucky's ban on performing or recognizing legal same-sex marriages performed in other states violates the U.S. Constitution's promise of equal protection under the law.

In a 25-page ruling, Heyburn determined that "it is clear that Kentucky's laws treat gay and lesbian personal differently in a way that demeans them," according to excerpts published in Louisville's Courier-Journal.

Although the ruling is clear that Kentucky's law is unconstitutional, Heyburn also issued an interim order scheduling a hearing "in the near future to discuss the appropriate form of relief and the timing of its effect," meaning same-sex couples are not yet able to marry in Kentucky.

Heyburn's clearly written decision heavily cites last summer's landmark ruling from the U.S. Supreme Court in U.S. v. Windsor, which struck down a central section of the so-called Defense of Marriage Act, which, like Kentucky's law did for state benefits, prohibited the federal government from recognizing as legal same-sex marriages performed in marriage equality jurisdictions.

Heyburn writes that the four same-sex couples who filed the lawsuit are, "in many respects … average, stable American families." The couples have been together for between 20 and 44 years, and three of the four pairs have children.

Ultimately, Heyburn determines that the state has no legally viable justification for denying equal marriage rights to gay and lesbian couples, rejecting the argument that the state has a legitimate interest in "preserving the state's institution of traditional marriage.

"That Kentucky’s laws are rooted in tradition, however, cannot alone justify their infringement on individual liberties," writes Heyburn. "Over the past forty years, the Supreme Court has refused to allow mere tradition to justify marriage statutes that violate individual liberties."

Heyburn also addresses the defense of exclusionary marriage rights advanced by antigay group the Family Trust Foundation of Kentucky, which filed an amicus curiae, or "friend of the court" brief, contending that marriage is regulated by the state to encourage "responsible procreation and childrearing, steering naturally procreative relationships into stable unions, promoting the optimal childrearing environment, and proceeding with caution when considering changes in how the state defines marriage."

Heyburn flatly rejects these illogical arguments. "The Court fails to see how having a family could conceivably harm children," he writes. Indeed, Justice Kennedy [in Windsor] explained that it was the government’s failure to recognize same-sex marriages that harmed children, not having married parents who happened to be of the same sex."

"No one in this case has offered factual or rational reasons why Kentucky’s laws are rationally related to any of these purposes," explains Heyburn. "Kentucky does not require proof of procreative ability to have an out-of-state marriage recognized. The exclusion of same-sex couples on procreation grounds makes just as little sense as excluding post-menopausal couples or infertile couples on procreation grounds. After all, Kentucky allows gay and lesbian individuals to adopt children. And no one has offered evidence that same-sex couples would be any less capable of raising children or any less faithful in their marriage vows. Compare this with Plaintiffs, who have not argued against the many merits of 'traditional marriage.' They argue only that they should be allowed to enjoy them also."

"Other than those discussed above, the Court cannot conceive of any reasons for enacting the laws challenged here," Heyburn continues. "Even if one were to conclude that Kentucky’s laws do not show animus, they cannot withstand traditional rational basis review."

Heyburn's ruling also acknowledges that his decision falls into line with those of numerous other federal courts that have considered statewide bans on same-sex marriage since last June's decision in Windsor.

"Indeed, to date, all federal courts that have considered same-sex marriage rights post-Windsor have ruled in favor of same-sex marriage rights. This Court joins in general agreement with their analyses."

In the final pages of his ruling, Heyburn addresses those who would argue that religious liberty is infringed upon by the state granting equal marriage rights to same-sex couples. It's one of the most clear-cut, logical explanations of why civil marriage should be considered a civil right seen to date:

"Our religious beliefs and societal traditions are vital to the fabric of society. Though each faith, minister, and individual can define marriage for themselves, at issue here are laws that act outside that protected sphere. Once the government defines marriage and attaches benefits to that definition, it must do so constitutionally. It cannot impose a traditional or faith-based limitation upon a public right without a sufficient justification for it. Assigning a religious or traditional rationale for a law, does not make it constitutional when that law discriminates against a class of people without other reasons."